Found–Space Mobile App General Terms

Found—Space Mobile App General Terms and Conditions (Agreement)

 

1.          AGREEMENT

1.1       These Terms and Conditions, together with our Privacy Policy, apply to your use of the Found Space Trading Pty Ltd (ABN 416 58080 427) ("we, "us" or "our") Platform.

1.2       Please read this Agreement carefully. By using, browsing, and/or reading the Platform, you are deemed to have agreed to, and accepted these Terms and Conditions on behalf of any entity for who you use the Platform, whether as an Authorised User, Invitee or otherwise.

1.3       If you do not agree with the Legal Terms, you must cease usage of the Platform, and any Services, immediately.

1.4       We reserve the right to review, change and update these Terms and Conditions by updating this page at our sole discretion. We will use reasonable efforts to provide you with notice when we update these Terms and Conditions. Any changes to the Terms and Conditions will take immediate effect from the date of publication.

2.          DEFINITIONS AND INTERPRETATION

2.1       In these Terms and Conditions, the following expressions have the following meanings, unless otherwise stated:

"Authorised User" means those of your employees, agents and contractors who are authorised by you to use the Platform, and subscribe to use the Platform via the Site;

"Business Day" means a day other than a weekend or public or bank holiday in Victoria, Australia;

"Charges" means the charges set out to you on the Platform', which may be updated or amended by us from time-to-time;

"Commencement Date" means the date that you register to use the Platform;

"Customer Data" has the meaning in clause 8.4 and includes Registration Data;

"Developed IP" is defined in clause 8.2;

"Intellectual Property Rights" means all present and future intellectual and industrial property rights throughout the world of whatever nature (whether or not registered or registrable) including but not limited to all rights in respect of technical information, know-how, copyright, trade marks, designs, patents, domain names, business names, logos, drawings, trade secrets, the right to have confidential information kept confidential or other proprietary rights, or any rights to registration of such rights;

"Invitee" means a person that you invite to use the Platform;

“Mobile App” means access to the Platform through a mobile application downloaded from the Google or Apple app store;

"Platform" means the Platform we provide under these Terms and Conditions, as a companion app to be used in conjunction with a smart sauna, and which includes any associated mobile application, software, technology, code and all Intellectual Property Rights contained therein, as located on the Site;

"Privacy Laws" means the Privacy Act 1988 (Cth), state-specific privacy legislation, or the General Data Protection Regulation (EU 2016/679) (as applicable);

"Provider IP" is defined in clause 8.1;

“Registration Data” is defined in 4.2

"Related Bodies Corporate" has the meaning given in the Corporations Act 2001 (Cth);

"Site" means www.foundspace.com.au or any other Site operated by us;

"Terms and Conditions" means these terms and conditions as amended by us from time to time; AND

"you" or "your" means the person or entity that has registered to use the Platform, an Authorised User, or an Invitee (as applicable).

3.          AUTHORISED USERS

3.1       You determine who may be invited to use the Platform ("Invitee") and the relevant level of access that the Invitee will have as an Authorised User.

3.2       After an Invitee has subscribed to use the Platform via the Site or Mobile App, they become an Authorised User. You may revoke access of an Authorised User at any time and for any reason or amend their level of access (as applicable).

3.3       You are solely responsible for each Authorised Users use of the Platform and compliance with these Terms and Conditions.

4.          ACCESS TO THE PLATFORM

4.1       The Platform can be accessed by:

  • downloading the Found Space Co. app available in the Google and Apple app stores; and

  • accessing the Site.

4.2       To use the Platform, you must register for an account and provide:

  • Your name;

  • Your address;

  • Height/weight;

  • Health contraindications to sauna use; and

  • Preferred username,

(“Registration Data”)

4.3       Your Registration Data will be reviewed by us and, at our sole discretion, you will be provided with an account.

4.4       If you have an account on the Platform, you can:

  • view your Registration Data on your user profile;

  • sync and monitor usage of your smart sauna;

  • control smart sauna functions using the Platform, including controlling the temperature, duration, starting and stopping a sauna session, adjusting lighting and sounds;

  • access educational multimedia content relating to sauna use, general health and wellbeing; and

  • contact our support on the Platform.

4.5       If you are under 18 years of age, we may ask you to confirm that you have your parents; or guardians; permission and that they have agreed to these Terms and Conditions on your behalf. Even if we do this, by submitting Registration Data to us, you acknowledge that you have your parents; or guardians; permission and that they have agreed to these Terms on your behalf.

4.6       If you are a parent or guardian who has permitted a person under 18 (a “Minor”) to create an account, you agree to:

  • exercise supervision over the Minor's use of our Services and their personal account with us;

  • assume all risks associated with the Minor's use of our Services and their account, including the transmission of content or information to and from third parties via the internet;

  • assume any and all liabilities resulting from the Minor's use of our Services and their account;

  • ensure the accuracy and truthfulness of all information submitted to us and the Website by the Minor; and

  • provide the necessary consents contained in these Terms on behalf of the Minor.

4.7       We reserve the right to take legal action and seek compensation from a parent or guardian of a Minor for any loss or damage we may suffer as a result of, or in connection with, any transaction entered into on, or via, the Website by that Minor.

4.8       If you provide Registration Data to us, you represent and warrant to us that the Registration Data provided is true, complete, accurate and up to date, and you undertake to maintain the truthfulness, completeness and accuracy of your Registration Data as necessary and/or as required by us.

4.9       If you provide us with Registration Data, you consent to the following:

  • we may provide your Registration Data our contractors, service providers and Related Bodies Corporate for the purposes of providing you with services relating to the Platform;

  • you may receive emails from us regarding details of your registration, orders and/or purchases made through your account, and/or information relating to your access and use of the Platform and your account; and

  • from time to time, we may email you regarding our services or third-party products and services which we believe may be of interest to you, such as new products, features, special offers and updated information. The emails may contain code that enables our database to track your usage of the emails, including whether the email was opened and/or what links (if any) were clicked. We may combine that information with other information which we have about you and may use that information to improve your site experience and/or provide customised email communications to you.

4.10     You acknowledge that we may use your Registration Data and any other personal information provided to us in accordance with our Privacy Policy.

5.          USE OF THE PLATFORM

5.1       You must ensure that your access to, and use of, the Platform is not illegal or otherwise prohibited by laws that apply in your jurisdiction.

5.2       Use of the Platform is at your own risk. The Platform and all related services are provided to you “as is” and “as available" without warranty or condition of any kind. We do not make any express or implied representation or warranty about the Platform, products or services.

5.3       You will not:

  • modify the Platform or merge any aspect of the Platform with another programme other than as expressly provided under these Terms and Conditions;

  • record, reverse engineer, copy, duplicate, reproduce, create derivate works from, frame, download, display, transmit or distribute any of the Platform, the source code of the Platform or any documents, manuals or setup instructions provided with the Platform;

  • licence, sell, rent, lease, transfer, assign or otherwise commercially exploit the Platform;

  • engage in unlawful behaviour, including unauthorised access to or use of data, services, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;

  • access, store, distribute or transmit:

    • viruses, worm, trojan or other malicious code that corrupts, degrades or disrupts the operation of the Platform;

    • material that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party;

    • material that facilitates illegal activity; or

    • material that abuses or causes damage or injury to any person or property;

  • provide Platform login details or passwords, or otherwise provide access to the Platform, to any unauthorised third party and you will take all reasonable steps to prevent unauthorised access to, or use of, the Platform;

  • share any features of the Platform that are not publicly available with any unauthorised third party;

  • expressly or impliedly impersonate another user or use the profile or password of any other user of the Platform;

  • harass, impersonate, stalk, threaten or otherwise interact in a negative manner with any other user (where interaction with other users is made possible); and

  • engage in any conduct on the Platform that is in breach of these Terms and Conditions (or any agreements mentioned therein)

5.4       All rights granted to you under these Terms and Conditions must not be leased, assigned, sold, licensed, resold or transferred to any third party in any manner whatsoever. You must not in any way encumber or allow the creation of any mortgage, charge, lien or other security interest in respect of the Platform.

5.5       Any breach of this clause 5 constitutes a breach of these Terms and Conditions and we may, at our absolute discretion, terminate or suspend your access to, and/or use of, the Platform, and/or take further actions against you for breach of these Terms and Conditions.

6.          YOUR OBLIGATIONS

6.1       You acknowledge that our ability to be able to provide the Platform to you without delay or interruption is dependent on your full and timely cooperation. You will:

  • co-operate with and assist us in the supply of the Platform;

  • promptly provide us with full and accurate information, data and explanations as and when required;

  • comply with all applicable laws, regulations and industry standards with respect to your activities and obligations under these Terms and Conditions;

  • ensure that your network and systems comply with the relevant specifications and guidelines provided by us from time to time; and

  • comply with all reasonable directions and guidelines from us as advised from time to time.

6.2       You must procure all necessary rights from third parties, which are from time to time required in order for us to be able to provide the Platform, to you.

6.3       It is your responsibility to ensure that any written communications we send to you set out the correct information in relation to your business and that you notify us of any changes to this information.

6.4       You agree and acknowledge that you are authorised to use the Platform and the Site and access the Customer Data (as applicable) that you may enter into, or connect with, the Platform or the Site, from time-to-time.

6.5       You agree that you have sole responsibility for any activity that occurs on your account. You must keep your account details and password secure, as you are responsible for any activity on your account (whether undertaken by you or anyone else). You agree to notify us immediately if you become aware of or suspect any security breach or unauthorised use of your password or account.

6.6       Any information on the Platform or otherwise provided to you is supplied in good faith but we do not guarantee its accuracy or completeness. You agree that it is your responsibility to make enquiries as to the accuracy or completeness of any information.

6.7       The Platform may contain links to other websites. Those links are provided for convenience only and may not be current. Any hyperlinks or banners advertising other websites on the Platform, or external websites that advertise the Platform, are not subject to our control or privacy standards, policies and procedures. We will not be responsible for the content or privacy practices associated with such linked websites and we recommend that you make your own enquiries as to the privacy and other policies of those third parties.

7.          CHARGES AND PAYMENT

7.1  No Charges are currently payable for access to the Platform, however if Charges are published on the Site, you agree that you will pay us the Charges to access and use the Platform in accordance with these Terms and Conditions.

7.2       The Charges are inclusive of GST and, unless stated otherwise, are in Australian Dollars.

7.3       Charges will not be changed retrospectively, however all Charges displayed on or via the Site or Platform are subject to change without notice. If you do not agree to these changes, you may terminate these Terms and Conditions in accordance with Clause 14.2.

7.4       You agree and acknowledge that we will treat an electronic instruction as authentic and are under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.

7.5       If payment of the Charges is not received by any due date, as specified to you via the Platform or on the Site, we will be entitled (without prejudice to any other right or remedy available to us under these Terms and Conditions or at law) to:

  • withhold provision of the Platform, or suspend your access to any or all of the Platform, until payment of the outstanding amount is received by us in full;

  • terminate these Terms and Conditions pursuant to clause 14.

7.6       You will make all payments for the Charges without any deduction for tax unless a tax deduction is required by law. If you are required to make a tax deduction by law, the amount due will be increased to the amount that (after making the tax deduction) upon deduction of the amount attributable to tax equals the amount which would have been due if no tax deduction had been required.

7.7       We may, from time to time, offer paid products or services through the Platform and in addition to the Services. In-app purchases will be processed in accordance with the terms outlined in the Google Play or Apple App store from which you purchased the Platform.

8.          INTELLECTUAL PROPERTY

8.1       All rights, title or interest in and to the Platform and any information or technology that may be provided to, or accessed by, you in connection with your use of the Platform is owned, and will remain owned, by us or our licensors ("Provider IP"). Using the Platform does not transfer any ownership or rights, title or interest in and to the Provider IP.

8.2       All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Platform will automatically vest in, and are assigned to, us, including any enhancements, improvements and modifications to the Provider IP (collectively, the "Developed IP").

8.3       You must not represent to anyone or in any manner whatsoever that you are the proprietor of the Platform and/or the Provider IP.

8.4       You retain ownership rights to data and content that you provide to us, whether by uploading to the Platform, connecting via any third-party applications or otherwise ("Customer Data"). You grant us a worldwide, perpetual, irrevocable, non-exclusive and royalty free license to access and use the Customer Data for the purpose of performing our obligations under these Terms and Conditions.

8.5       If you enable any third-party applications in conjunction with the Platform, you agree that your Customer Data may be accessible by those third-party applications in order for such applications to functions correctly. You will be bound by the terms of such third-party providers regarding the use of your Customer Data and we will not be held responsible for the disclosure, modification or deletions of the Customer Data by such third-party applications.

8.6       You agree that we may refer to you, your business name, publish your logo and/or trade mark and refer to you as a customer of ours in any communications or publications for the purposes of marketing or promoting our business.

9.          WARRANTIES

9.1       We will use reasonable endeavours to provide constant, uninterrupted access to the Platform, but with any Platform-based product, this cannot be guaranteed. We will not be responsible or liable for any direct or indirect losses or damages suffered or sustained by you as a result of, or in connection with, any interruption or delay in accessing and using the Platform.

9.2       To the maximum extent permitted by law, no further warranty, condition, undertaking or term, express or implied, statutory or otherwise as to the condition, quality, performance or fitness for purpose of the Platform provided hereunder is given or assumed by us other than as required at law. You acknowledge and agree that the Platform is provided on 'as is' basis and that you will make your own investigations into whether or not the is fit for your purposes.

9.3       We make no representations, warranties or guarantees:

  • that content available on, or produced by or via, the Platform is accurate, complete, reliable, current, error-free or suitable for any particular purpose. This content is provided on an 'as is' basis and you acknowledge and agree that you exercise absolute discretion in choosing how to use this content; or

  • as to the availability of the Platform or that the Platform is or will be free from viruses, worm, trojan or other malicious code. You are responsible for taking your own precautions in this respect.

10.       LIABILITY AND EXCLUSIONS

10.1     Our total liability to you or any third party (whether based on warranty, contract, tort, statute, misrepresentation or otherwise) arising out of, or in connection with, these Terms and Conditions, for any one event or a series of related events, will be limited to the total Charges paid (excluding GST and expenses) by you to access and use the Platform in three (3) immediately prior to the event(s), or $100, whichever is greater.

10.2     You assume sole responsibility for your use of the Platform (including any content contained therein) and for any reliance on, and use of, conclusions drawn from such use.

10.3     We will have no liability for any losses suffered or any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the Platform or any actions taken by us at your direction.

10.4     In no event will we be liable to you or any third party for any:

  • loss of profits, revenue, goodwill or business, business interruption, corruption, loss or alteration of data, downtime costs, loss of use, failure to realise anticipated savings or for any indirect or consequential loss or damage of whatsoever nature, however caused;

  • breach by you or any third party of the Intellectual Property Rights of a third party or any laws, regulations or any relevant industry codes;

  • viruses, worm, trojan or other malicious code introduced into, or transmitted to, you or any third party during the course of using the Platform; or

  • loss of or damage to any property belonging to you or any third party or any personal injury or death arising out of or in connection with these Terms and Conditions.

10.5     The parties acknowledge that the limitations of liability contained in this clause 10 are a fair and reasonable allocation of the commercial risk between the parties.

10.6     Nothing in these Terms and Conditions limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

11.       INDEMNITY

11.1     You agree to indemnify and hold us, our Related Bodies Corporate and our officers, directors, employees and contractors (collectively, the "Indemnified") harmless from and against any and all claims, actions, demands, proceedings, liabilities, losses, damages, expenses and costs that may be brought against the Indemnified or which the Indemnified must pay, sustain or incur as a direct or indirect result of or arising out of:

  • breach by you of any of your obligations under these Terms and Conditions;

  • loss of, or damage to, any property belonging to you or any third party or any personal injury or death arising out of or in connection with these Terms and Conditions;

  • breach of any third party's Intellectual Property Rights; or

  • breach by you of any law (including Privacy Laws).

12.       CONFIDENTIALITY

12.1     Each party agrees not to use or disclose confidential information received or disclosed to it by the other party in the negotiation or operation of these Terms and Conditions, save for such use or disclosure necessary and required to perform their respective obligations under these Terms and Conditions. Disclosure will be, in any event, only made to the receiving party's employees, officers, agents or contractors to whom it is necessary to do so and who are directly involved in performing the receiving party's obligations.

12.2     In making disclosure to persons as permitted under this clause 12, the receiving party will ensure that persons receiving the disclosing party's confidential information will comply with the same obligations regarding confidentiality as that of the receiving party.

12.3     Information is not to be regarded as confidential, and the receiving party will have no obligation regarding confidentiality, where that information is already in the public domain or enters the public domain through no fault of the receiving party, is received from a third party without any obligations of confidentiality, is used or disclosed with the prior written consent of the disclosing party, is disclosed in compliance with a legal requirement or is independently developed by the receiving party.

12.4     Any confidential information held by a receiving party will be returned to the disclosing party or destroyed at the written request of the disclosing party.

13.       PRIVACY

13.1     You must, in connection with these Terms and Conditions:

  • ensure that you and your employees, contractors and agents are aware of your obligations under all applicable Privacy Laws;

  • at all times comply with your obligations under applicable Privacy Laws; and

  • take reasonable steps to assist us to comply with our obligations under applicable Privacy Laws as may be notified to you from time to time.

13.2     We are committed to protecting your privacy and personal information. Please see our Privacy Policy for further details about our practices relating to the collection, use, disclosure and storage of your personal information.

14.       TERM AND TERMINATION

14.1     These Terms and Conditions will commence on the date that you register your details via the Platform (whether in connection with a trial to use the Platform, as a paying user of the Platform, or otherwise) and after any applicable trial period, will continue in force so long as you continue to access the Platform, unless terminated in accordance with this clause 14.

14.2     If Charges are payable, these Terms and Conditions will continue for the period covered by the Charges. At the end of period, and subject to your payment of the Charges, these Terms and Conditions will continue for the relevant period covered by the Charges. You must pay the Charges in advance of each relevant period.

14.3     If you would like to terminate these Terms and conditions you may request deletion of your user profile and Registration Data by emailing us at hello@foundspace.com.au . Upon receipt of your request, we agree to terminate these Terms and Conditions within one (1) month of your written request.

14.4     We may terminate these Terms and Conditions (or at our discretion, terminate or suspend the supply to you of the Platform) immediately if you fail to pay any Charges, or at our sole discretion.

14.5     On termination of these Terms and Conditions for any reason, we will be entitled to immediate payment for all Charges properly incurred up to the date of termination and during any applicable notice period.

15.       SUPPORT SERVICES

15.1     We may, at our absolute discretion, provide you support in relation to your use of the Platform or the Site.

15.2     You may access help documents to diagnose any issues that you are facing here. If, after reasonable efforts, you are unable to access or find the information relevant to you, you may contact us at hello@foundspace.com.au

15.3     We will endeavour to provide support within a reasonable timeframe during Business Hours on Business Days, however this cannot be guaranteed.

16.       SITUATIONS OR EVENTS OUTSIDE OUR REASONABLE CONTROL

16.1     There are certain situations or events that may occur which will not be within our reasonable control. Where this occurs, we will notify you of these circumstances and attempt to recommence providing the Platform as soon as we are able. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue providing the Platform.

17.       NOTICES

17.1     Any notice required to be given pursuant to these Terms and Conditions will, unless otherwise stated, be in writing and be sent to the other party at the email address specified in these Terms and Conditions (or to such other address as either party may from time to time notify the other in accordance with this clause). We may, in our sole discretion, provide notices in the Platform through any messaging functions that are available on the Platform.

17.2     A notice given under clause 17.1 will be deemed to have been delivered 24 hours after the email is sent.

18.       GENERAL

18.1     Variations to this Agreement may be made by us and will be effective from the date of publication of the amended Agreement to the Platform. We will use reasonable efforts to notify you of the variations on the Platform, and you may be directed to agree to the variations.

18.2     The provisions of these Terms and Conditions that are capable of having effect after the termination or expiry of these Terms and Conditions will remain in full force and effect following the termination or expiry of these Terms and Conditions.

18.3     You must not, without our prior written consent (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.

18.4     If either party chooses to waive or ignore a breach of these Terms and Conditions, this will not prevent that party from taking action in respect of the same type of breach at a future date.

18.5     Nothing in these Terms and Conditions is intended to create or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these Terms and Conditions. Neither we nor you will have, nor represent that it has, any authority to make any commitments of this kind on the other party's behalf.

18.6     These Terms and Conditions, and the relationship between the parties contemplated by it, is not intended to be exclusive.

18.7     If any provision of these Terms and Conditions is held invalid or unenforceable, such provision will be deemed deleted from these Terms and Conditions and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of these Terms and Conditions will continue in full force and effect.

18.8     These Terms and Conditions are governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there.

18.9     These Terms and Conditions may be executed electronically and in any number of counterparts. All counterparts together will be taken to constitute one instrument.

18.10  These Terms and Conditions constitutes the entire agreement between the parties in respect of the subject matter of these Terms and Conditions and supersedes and replaces any prior written or oral agreements, representations or understandings. The parties confirm that they have not relied on any representation that is not expressly incorporated into these Terms and Conditions.